Headlines

Summary

On May 21, 2013, the Senate Judiciary Committee approved an amended S. 744, the “Border Security, Economic Opportunity and Immigration Modernization Act of 2013,” by a bipartisan vote of 13-5. The bill is now being considered on the Senate floor.

The employment-based third preference category cut-off date for most countries advanced significantly for the third month in a row, but this rapid rate is not expected to continue. The Department of State also predicted that many older EB-2 cases for natives of India will be able to be granted before the end of the fiscal year.

The full Senate is now considering the comprehensive immigration reform bill approved by the Senate Judiciary Committee on May 21, 2013. The committee approved an amended S. 744, the “Border Security, Economic Opportunity and Immigration Modernization Act of 2013,” by a bipartisan vote of 13-5. On June 11, 2013, the Senate voted 82-15 to consider the bill, more than the 60 votes needed. Senators are now debating the bill and offering amendments. A full Senate vote is possible by the end of June or early July; Senate Majority Leader Harry Reid wants to vote before the July 4 recess.

Meanwhile, according to reports, recent bipartisan meetings in the House of Representatives on immigration reform have been fruitless so far. The main obstacle appears to be that Republicans say they will not approve any access to health care coverage sponsored by the U.S. government for newly legalized workers before they become U.S. citizens. Democrats argued that those workers should be eligible for benefits if they are paying U.S. taxes. Some observers say it is unlikely that comprehensive immigration reform legislation on the House side will pass, although portions of it could.

2. Signaling Flexibility Within Limits, USCIS Releases Final Version of EB-5 Policy Memo

U.S. Citizenship and Immigration Services (USCIS) has released the final version of a long-awaited memorandum on EB-5 adjudications policy that went through four iterations beginning in November 2011.

The memo begins by reviewing the purpose and structure of the EB-5 immigrant investor program and reviews terminology and definitions, noting that the program’s purpose is “to promote the immigration of people who can help create jobs for U.S. workers through their investment of capital in the U.S. economy.”

Regarding the “preponderance of the evidence” standard, the memo notes that adjudication of EB-5 petitions and applications must establish each element by showing that what is claimed is “more likely so than not so.” This is a lower standard of proof than the “clear and convincing” or “beyond a reasonable doubt” standards. “The petitioner or applicant does not need to remove all doubt from our adjudication,” the memo states. Even if an adjudicator has some doubt, if the petitioner or applicant submits “relevant, probative, and credible evidence” that leads to the conclusion that the claim is more likely than not, or probably true, the petitioner or applicant has satisfied the standard of proof.

The memo allows a degree of flexibility in certain areas, such as “to account for the realities and unpredictability of starting a business venture,” although it cautions that this is not an “open-ended allowance.” The memo notes, for example, that the EB-5 program allows an immigrant investor to become a lawful permanent resident, without conditions, if he or she has established a new commercial enterprise, substantially met the capital requirement, and can be expected to create within a reasonable time the required number of jobs. All of the goals of capital investment and job creation need not have been fully realized before the conditions on the immigrant investor’s status have been removed. Rather, the memo states, the regulations require the submission of documentary evidence that establishes that it is more likely than not that the investor is in “substantial” compliance with the capital requirements and that the jobs will be created “within a reasonable time.”

USCIS has some latitude in interpreting what constitutes “within a reasonable time,” the memo notes, adding that the regulations require that the business plan submitted with the Form I-526, Immigrant Petition by Alien Entrepreneur, establish a likelihood of job creation “within the next two years.” Because the law contemplates two years as the baseline expected period in which job creation will take place, the memo explains, jobs that will be created within a year of the two-year anniversary of the immigrant’s admission as a conditional permanent resident or adjustment to conditional permanent resident status may generally be considered to be created within a reasonable period of time. Jobs projected to be created beyond that time horizon “usually will not be considered to be created within a reasonable time, unless extreme circumstances, such as force majeure, are presented,” the memo warns.

Following the theme of flexibility with limits, the memo acknowledges that business strategies “constantly evolve.” Therefore, the Form I-924, Application for Regional Center, provides a list of acceptable amendments, including “changes to organizational structure or administration, capital investment projects (including changes in the economic analysis and underlying business plan used to estimate job creation for previously approved investment opportunities), and an affiliated commercial enterprise’s organizational structure, capital investment instruments or offering memoranda.” The memo notes, however, that such formal amendments to the regional center designation are not required when a regional center changes its industries of focus, geographic boundaries, business plans, or economic methodologies, unless the regional center elects to pursue an amendment because it seeks certainty in advance of adjudication.

The memo also notes that unless there is reason to believe that a prior adjudication involved an objective mistake of fact or law, USCIS should not reexamine determinations made earlier in the EB-5 process. Absent a material change in facts, fraud, or willful misrepresentation, the memo states, USCIS should not re-adjudicate prior USCIS determinations that are subjective, such as whether the business plan is comprehensive and credible or whether an economic methodology estimating job creation is reasonable.

Other topics the memo discusses include targeted employment areas; new commercial enterprises; purchases of existing businesses that are restructured or reorganized; expansion of existing businesses; pooled investments in non-regional center cases; evidence of the establishment of, or investment in, a new commercial enterprise; job creation; qualifying employees; the sequence of individual investor filings; business plans; and the impact of “material changes” to a project.

U.S. Customs and Border Protection (CBP) announced on May 22, 2013, that it is easing the international arrival process with new technology and procedures, including automating the I-94 Arrival/Departure Record and expanding self-service kiosks.

CBP said that additional steps travelers can take to smooth their arrival process include familiarizing themselves with U.S. rules and regulations before departing. The agency released its “Top 10 Travel Tips” (edited):

If you are from a Visa Waiver country, don’t leave home without your Electronic System for Travel Authorization (ESTA). More on getting your Electronic System for Travel Authorization before boarding your flight. (See https://esta.cbp.dhs.gov/esta/.)

U.S. Citizenship and Immigration Services (USCIS) issued a reminder that as of May 7, 2013, employers must use the latest version of the I-9 employment eligibility verification form for new hires. The new form has a revision date of “03/08/13 N” in the lower left corner of the first instructions page. It expires on March 31, 2016. Q&A’s on the E-Verify monitoring and compliance functions are available here.

The employment-based third preference category cut-off date for most countries advanced significantly for the third month in a row, as reflected in the July 2013 Visa Bulletin.

The Department of State’s Visa Office said this recent rate of movement is not expected to continue in the future. Rapid forward movement of cut-off dates is often followed by a dramatic increase in demand for numbers within three to six months, the Visa Bulletin explains. Once such demand begins to materialize, the cut-off date movement will begin to slow or will even stop for a period of time.

For June, the employment-based third preference cut-off date for China was September 1, 2008; in July, it will be January 1, 2009. For India, EB-3 moved to January 8, 2003 in June and will move to January 22, 2003 for July. For the Philippines, EB-3 moved to September 22, 2006 in June and will move to October 1, 2006 for July. For all other chargeability areas, the date is September 1, 2008 for June and January 1, 2009 for July. The dates for the “Other Workers” categories in June are the same, except for China-mainland born, which is October 22, 2003 for June and May 22, 2004 for July.

In the employment-based second preference, all countries other than India and China are current, but for those two countries, movement has been slow. EB-2 for China will be at August 8, 2008 for July, and EB-2 for India will be at September 1, 2004. The July Visa Bulletin does contain some hope, however, for India EB-2, noting that total demand for EB-2 visas will be lower than the annual cap in that category, leaving a substantial number of immigrant visas available to address the India EB-2 backlog. Exact numbers or priority date movements, however, were not released.

The Department of Homeland Security reportedly has ordered U.S. border agents to verify the validity of student visas for every international student arriving in the United States, effective immediately. Border agents are to use flight manifest information to verify student visa status, and check any for which that information is not available against a DHS database, according to the Associated Press, which obtained a copy of an internal memo circulated by David J. Murphy, of U.S. Customs and Border Protection, on May 3, 2013.

The order follows news that one of the students accused of hiding evidence after the April 15 Boston Marathon bombings, Azamat Tazhayakov, had returned to the United States in January without a valid visa. Reportedly, the border agent at the airport in New York where Mr. Tazhayakov entered the United States on January 20 did not have access to the Student and Exchange Visitor Information System (SEVIS) and didn’t send Mr. Tazhayakov to secondary inspection where SEVIS information would have been available. All border agents will now be able to access SEVIS. One of the bombers, Tamarlan Tsarnaev, was a U.S. permanent resident and the other, Dzokhar Tsarnaev, was a U.S. citizen. Tamarlan is dead and Dzokhar is in custody.

Delays are expected at ports of entry for international students as a result of the new order.

7. Government Agency Links

Follow these links to access current processing times of the USCIS Service Centers and the Department of Labor, or the Department of State’s latest Visa Bulletin with the most recent cut-off dates for visa numbers:

8. Klasko News

Rankings and Listings

U.S. News & World Report Names KILP Top Tier

Klasko Immigration Law Partners is pleased to announce that the firm received the highest ranking (Tier 1) for Immigration Law nationally as well regionally in New York and Philadelphia in the 2013 edition of U.S. News and World Report and Best Lawyers “Best Law Firm” rankings.

The rankings, available online at http://bestlawfirms.usnews.com/, are based on a combination of “hard data with peer reviews and client assessments” according to Steven Naifeh, President of Best Lawyers. Every Fortune 100 company participated in the survey. “Achieving a high ranking is a special distinction that signals a unique combination of excellence and breadth of expertise” as stated in the press release issued by U.S. News.

Chambers Ranks KILP Among Top Firms Eight Consecutive Years

Klasko Immigration Law Partners has once again been selected as one of the top 5 business immigration law firms in the United States by the prestigious Chambers Global: The World’s Leading Lawyers for Business (Chambers and Partners). Impressively, the firm has achieved this top ranking in Chambers Global for the past eight consecutive years (2006 – 2013). Moreover, Chambers Global has again selected managing partner H. Ronald Klasko (Ron) as one of the top immigration attorneys in the country and named William Stock (Bill) among the leading 35 immigration attorneys in the US. The publication states:

Ronald Klaskois lauded as a fantastic and knowledgeable immigration lawyer who provides first-class advice to clients in a range of industries. He frequently represents his clients at US consulates, and before the Department of Labor and the US Citizen and Immigration Services (USCIS). He is based in Philadelphia, as is his colleagueWilliam Stock, who comes particularly highly recommended for immigration advice on behalf of medical, scientific and pharmaceutical industry clients.

Chambers USA 2013, also honored Klasko Immigration Law Partners with a high ranking and listed Ron and Bill among the top immigration attorneys, based on interviews with firm clients, and provided the following analysis:

Managing partnerRonald Klaskois “a fixture in the immigration Bar” and represents clients from a diverse range of industries and sectors, including biotech, manufacturing and healthcare.

William Stockelicits praise for his creativity in litigation and is also described as an “impressive strategist around immigration issues.” Stock concentrates on assisting individuals and domestic and international companies with their immigration needs and related litigation.

The “wonderful”

KILP is particularly proud of the top firm and lawyer ratings as Chambers bases its rankings solely on reviews and interviews by clients and other attorneys.

News and Noteworthy

Bill was interviewed for an AILA Quicktake on May 15 to discuss the markup of the Senate’s Immigration bill in the Judiciary Committee. AILA Quicktakes are short videos that summarize the current state of legislation and provide other immigration updates. Bill’s Quicktake can be viewed at http://goo.gl/j8VIw, and readers can subscribe to the Quicktake YouTube channel for future updates.

Upcoming Speaking Engagements

Bill will be speaking at the National Association of College and University Attorneys (NACUA) Annual Conference on June 22, 2013. He is presenting “The Immigration Law Survival Guide for University Attorneys” with attorneys from the University of Pennsylvania and Kent State University.

Ron will be speaking at the AILA conference to be held from June 26-29, 2013, in San Francisco on “Masters Business: Hot Topics with EB-5 Regional Centers.”

Elise A. Fialkowski will be presenting at the Global Village Visa Panel at Lehigh University in Bethlehem, PA on July 10. Global Village is a cross cultural program bringing together future leaders from over forty different countries. In her presentation, Elise will discuss immigration laws and regulations affecting students, scholars, employees, business people and investors. For more information about this program, write to Elise at efialkowski@klaskolaw.com.

Recent Speaking Engagements

Bill presented at the American Council on International Personnel’s 2013 Symposium in Alexandria, VA on June 5, 2013. He served as a panelist on “Behind the DHS Curtain: The Path (and Side Roads) for Your Immigration Case,” which addressed DHS file systems and databases, and how to address cases that have gone “off track.” The panel also addressed the level of discretion USCIS and CBP officers have in making decision, and how to advocate for favorable discretion on behalf of employees.

Ron and Elise spoke at several sessions at the NAFSA 2013 Annual Conference & Expo in St. Louis, Missouri from May 26 – 31, 2013. Ron spoke on “Hot Immigration Issues for Academic Healthcare Institutions.” Elise chaired the session “The Government is Watching: Site Visits, Audits, and Inspections” and was a panelist on “H-1B, PERM, and Employment-Based Hot Topics.” For more information on these talks, contact the speakers.

Recent Publications

Michelle T. Kobler published “CBP Automates Arrival/Departure Records for Foreign Nationals” in the May 15, 2013 issue of The Legal Intelligencer. In the article, Michelle outlines CBP’s ongoing move to create an electronic “arrival/departure” record for immigrant travelers and doing away with the paper I-94 cards. For a copy of this article, write to Michelle at mkobler@klaskolaw.com.

Social Media

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